Sheo Soondary v. Pirthee Singh BS650830
PRIVY COUNCIL

Before:-Sir James W. Colvile, Sir Barnes Peacock, Sir Montague E. Smith and Sir Robert P. Collier.

0 D/d. 3.5.1877

Sheo Soondary - Defendants

Versus

Pirthee Singh - Plaintiff

On Appeal from The High Court At Bengal.

The Respondents did not appear.

Solicitors for the Appellant : Lawford & Waterhouse.

Solicitors for the Respondents : T. L. Wilson.

Hindu Law - Dayabhaga - Succession of Half - Brother in a Joint Family.

[Para ]

According to the Dayabbaga a brother of the whole blood in a joint family succeeds in preference to a brother of the half-blood to the share of a deceased brother.

Rajkishors Lahoory v. Gobind Chunder Lahoory, I. L. R. 1 Cal. 27, Suth. W. R. 234; and note infra, p. 153 approved

Appeal from a decision of a Divisional Beach of the High Court (Feb. 13, 1875), which was passed after a remand by an order of Her Majesty in Council, dated the 20th of November, 1873, to try certain issues. By that decision the High Court awarded to the Respondent Pirthee Singh one-third share of the estate in dispute, or, as it was expressed, a six annas and eight gundas share. Since that decision a Full Bench of the High Court in the case of Rajkishore Lahoory v. Gobind Chunder Lahoory, I. L. R. 1 Calc. 27 : 24 Suth W.R. 234 : and note infra, p. 153 held that brothers of the half-blood are not according to Hindu law as prevalent in Bengal entitled to succeed to the inheritance whilst there are brothers of the whole blood. Applying that principle, which the Appellant maintained to be correct, to the facts of this case, it was contended that Pirthee Singh was only entitled to two annas, thirteen gundas, on cowrie, and one krant share of the estate in question.

The facts of the case and the proceedings in the suit are sufficiently set forth in the judgment of their Lordships.

Cowie, Q.C., and Graham, for the Appellant, contended that the above decision of the Full Bench of the High Court was right. Three cases were referred to in which the equal heritable right of the brothers of the half-blood with those of the whole blood, whilst the family remained undivided, were those of the while blood, whilst the family remained undivided, were upheld : see Tilluk Chunder Roy v. Ram Luckhee Dossee, 2 Suth. W. R. 41 ; Kylash Chunder Sircar v. Gooroo Churn Sircar, 3 Suth. W. R. 43; Shib Narain Bose v. Ram Nidhe Bhose, 9 Suth. W. R. 87. But the point was referred to a decision of the Full Beach by

L. Jackson and M' Donnell, JJ., in the case of Rajkrishore Lahoory v. Gobind Chunder Lahoory, I. L. R. 1 calc. 27 : 24 Suth, W.R. 234 : and note infra, p. 153. and in the judgment there given the authorities, see especially Dayabhaga, ch. xi., sections 6,8,9,10, were fully discussed. It was now contented that that decision was right, for the reasons therein given.

Cases Referred :-

Guru Gobind Shaha Mandal v. Anund Lal Ghose Mazumdar, 5 Beng. L. R. 15 : S. C. 13 Suth. W. R. F. B. 49).

Kylash chunder Sircar v. Gooroo churn Sircar, 3 Suth. W. R. 43.

Rajkishore Lahoory v. Gobind Chunder Lahoory, I. L. R. 1 calc. 27 : 24 Suth. W. R. 234 : and note infra, p. 153.

Shib Narain Bose v. Ram Nidhee Bose, 9 Suth. W. R. 87.

Tilluk chunder Roy v. Ram Luckhee Dosses, 2 Suth. W. R. 41.

JUDGMENT

The judgment of their Lordships was delivered by

Sir Montague E. Smith :- The single question in this appeal is whether in a join family a brother of the half-blood is entitled to succeed equally with a brother of the whole blood to the share of a deceased brother. It arises at the close of a long litigation, and in consequence of a remand which was made by Her Majesty, upon the recommendation of this Committee, on the hearing of a former appeal in this suit. It is not necessary to recount at any length the proceedings in the suit, because the determination of the above question will in support either the decree of the subordinate judge or the decree of the High Court which reversed that decision ; but it may be stated that the action was brought by the present Respondent, Pirthee Singh, against the Court of Wards, who were representing Sheo Shoondary, to recover an estate called talook Sunkra in zillah Bhaugulpore. The estate had belonged to Soomaer Singh, the common ancestor of the suit in India, and upon the former appeal here it appeared that two only of his descendants were before the Court, namely, the Plaintiff and the Defendant. Pirthee Singh was one of the sons of Soomaer, and Shoe Soondary was a granddaughter of Manick, another son. Manick left an only son of the name of Durbijoy and he had died leaving his daughter, sheo Soondary, as his heir and representative.

The questions originally contested in the suit were whether Pirthee singh was the legitimate or illegitimate son of Soomaer singh, an issue was directed to try that question. The other question was one of law, whether the law of primogeniture obtained in the family of Soomaer Singh or not. Those were the two questions upon the former appeal. It became, however, necessary to ascertain whether the family were governed by the law of the Mitakshara or by the law of the Dayabhaga, and how that was remained uncertain upon the record as it was brought up before this Committee. The result of the appeal was that their Lordships recommended that he cause should be remanded to try the following issues : "First, whether Soomaer Singh left any and what legitimate sons other than Manick Singh in the pleadings mentioned and the Respondent ; and, if so, whether they are living or dead? And if any of them are dead, when they respectively died, and whether they left any and what male descendants." That issue was sent down, because upon the hearing of the appeal it appeared that there were other sons of Soomear besides those who were the parties to the record, and their Lordships felt that it would not be right to give a decision disposing of this property without some inquiry being made respecting the other sons. The facts which appeared upon the trial of this issue have led to the question which is now before their Lordships have led to the question which is now before their Lordships for decision. The second issue was, "Whether the estate of Soomaer Singh, which was formerly within the limits of zillah Beerbhoom, having been transferred to zillah Bhaugulpore, the succession thereby becomes liable to be regulated by the law of the Mitakshara, or whether by reason of any local or family custom such succession, notwithstanding the transfer, continues to be governed by the law of the Dayabhaga." The finding of both the Courts upon that issue was that this family is governed by the law of the Dayabhaga.

Upon the trial of the first issue it appeared that Soomaer left six sons by three wives ; Manick, the son of the eldest wife ; four others, Durbar, Tilluk, Hurry, and Ghansi, sons by his second wife ; the Plaintiff, Pirthee Singh, being the only son of the third. The question arose below whether Pirthee Singh, as brother of the whole blood, to the shares of Durbar, Ghansi, and Hurry, who are dead, The subordinate Judge held that he did not so succeed ; that he was only entitled to his own share as one of the six sons of Soomear, and therefore to only one-sixth of the property. Upon an appeal to the High court that decision, so far as it related to the share of Pirthee Singh, was reversed, and it was held that he was entitled altogether to six annas and eight pies share of this estate, made up of the shares to which they held him to be entitled as heir to his half-brother, and his own share.

Their Lordships have been referred to the Dayabhaga and the commentators upon the text of the Dayabhaga, and they have also been referred to a decision of the Full Bench of the High Court of Bengal, in which the question now to be determined was raised and very fully considered. That decision is opposed to the judgment of the High Court in the case under appeal ; but at the time this judgment was given, the decision of the Full Bench had not been delivered, and the High court appear to have determined the question in this suit without going very fully into the doctrine. They probably acted upon certain decisions which have been given by Divisional Courts of the High Court of Bengal, which held that the half-brother was entitled to share in the same way as a uterine brother. The cases which have so held are Tilluk chunder Roy v. Ram Luckhee Dosses, 2 Suth. W. R. 41, Kylash chunder Sircar v. Gooroo churn Sircar, 3 Suth. W. R. 43 (in which the court went fully into the text-books and commentators), and Shib Narain Bose v. Ram Nidhee Bose, 9 Suth. W. R. 87. These decisions come near together in point of time. They are not decisions running over a long period of years, which might in that case be considered to have declared the law with regard to the succession to property, and which under such circumstances their Lordships would have been unwilling to disturb ; but they are decisions of a recent date and coming very nearly together.

The recent case in which the question came before the full Court for consideration is Rajkishore Lahoory v. Gobind Chunder Lahoory I. L. R. 1 calc. 27 ; 24 Suth. W. R. 234. That case is entitled to great authority from the manner in which it came before the Court. The question is precisely that which is raised in the present appeal, and upon the hearing before the Divisional Bench, the Judges, upon being referred to the decisions in the Divisional Beach, the Judge, upon being referred to the decisions in the Divisional Courts on the subject, felt considerable doubt whether they had been correctly decided ; and the question being one of great importance, they thought it right to refer the then appeal for decision to the full Court. That accordingly was done. Mr. Justice Macpherson gave the judgment of the Court, in which all the other judges, being five in number, concurred.

It cannot be denied that the construction of the text in the Dayabhaga itself is not free from difficulty. In the early sections of the chapter in which it is discussed (the 11th chapter), that the half-brother does not succeed to the share of his half brother's estate in the case of an undivided family which had never separated. But in clause 35, a doubt is thrown upon the certainty of the doctrine thus laid down by a citation from yama, which runs thus : "The whole of the undivided immoveable estate appertains to all the brethren ; but divided." This citation occurs in one of a series of paragraphs which discuss the effect of brothers becoming reunited after a separation ; and it would appear that the law is different with regard to half-brother who, having once separated, are re-united, from that which governs the case of half-brothers who have never separated.

Their Lordships do not thick it necessary to discuss at length the different passages in the Dayabhaga and the commentaries of text writers upon them, because that has been done very fully in the able and well-considered judgment of the High Court delivered by Mr. Justice Macpherson See note on p. 153, infra. It is a question of positive law, and finding the law expounded, and , as their Lordships think, correctly declared by High Court, it is sufficient to say on the present occasion that they adopt the opinion of the High Court and the grounds upon which their judgment is founded. There is no doubt that the brother of the whole blood stands with regard to religious offices in a higher position than the brother of the half-blood. The brother of the whole blood offers three oblations to the ancestors of the deceased on the father's side, and three on the mother's ; whereas the brother of the half-blood offers three to the paternal ancestors only. Therefore, there are reasons peculiar to the Hindu law of succession, as expounded by the Dayabhaga, which may have led to the distinction in the mode in which the succession to brothers takes place. The High Court, having gone through the authorities, have declared what appears to them to be the result in the following sentences : "We thus have it that, (a) applying the principle which is the basis of the whole scheme of inheritance propounded in the Dayabhaga, the whole brother undoubtedly succeeds in preference to the half-brother : (b) In the Dayabhaga. ch. xi., section 5, clauses 9,11, and 12, it is expressly said that the whole brother succeeds before the half-brother ; and elsewhere there are indications that the commentator accepted as a fact the superiority of the whole blood : (c) The son of a whole brother is expressly declared to rank before the son of a half-brother, and the principle upon which this is declared applies to the case of brothers as half-brothers : (d) When there has been a separation, a half-brother who becomes reunited gains by the reunion a better up to the level of a whole brother who has not became reunited,-which proves that the original position of the half-brother was inferior to that of the whole." This last propositions seems to be well founded on the authority of the Dayabhaga. Sect. 35, which embodies the passage from Yama, is referred to and explained in the judgment as follow : "It is to be observed, and I think it is shewn by clause 36 that this is so,-that in the Dayabhaga itself this text of Yama is introduced only as being connected with the matter under discussion, viz., the succession in cases of separation with or without reunion, &c., and there is really nothing to lead to the supposition that it was referred to save as already distinctly propounded by the writer himself in the earlier portion of section 5." Their Lordships think that this construction reconciles the different parts of the Dayabhaga.

The result is that the judgment under appeal cannot be supported, and their Lordships will humbly advise Her Majesty to vary the decree of the High Court by declaring that Pirthee Singh is entitled to a sixth, that is to say, two annas and eight pies gundas share. Inasmuch as the law had been declared favour of the Respondent as the law had been declared in favour of the Respondent at the time the decree was passed, their Lordships thick that it is not a case for costs.

Note. - In the case of Rajkishore Lahoory v. Gobind Chunder Lahoory, which was heard on appeal by the High Court of Bengal (L. Jackson and McDonnell, JJ.), it was contended on behalf of the Defendant Rajkishore, that the Plaintiff was not entitled to the share of his deceased uterine brother, Bhugwan Chunder, to the exclusion of Rajkishore, the half-brother, as the family were undivided at time of Bugwan chunder's death. In consequence of conflicting authorities upon this point, the Division Bench referred, for the decision of a Full Bench, the question "Whether the Plaintiff is entitled solely to succeed to the share of his uterine brother; or whether Rajkishore, being a brother of the half-blood, should jointly and equally with him."

The opinion of the Full Bench (Macpherson, Office. C.J., Jackson, Pontifex, Birch, and Morris, JJ.) was delivered by chief Justice Macpherson as follows :-

The answer to this question depends upon the construction to be put upon the Dayabhaga of Jumutavahana, the founder of the Bengal school. The other authorities current in Bengal are all of them based on the Dayabhaga, and such differences as exit between them and the Darabhaga scarcely ever involve conflicts of principle. According to the Dayabhaga, the whole theory of inheritance is founded on the principle of spiritual benefits conferred, and it is by that principle that question relating to inheritance must be tested and determined (See the judgment of the Full Bench in Guru Gobind Shaha Mandal v. Anund Lal Ghose Mazumdar, 5 Beng. L. R. 15 : S. C. 13 Suth. W. R. F. B. 49), the question now before us being no exception to this general rule.

It appears to me that the Dayabhaga (with the exception of one clause, chap. xi., section 5, clause 35, to which I shall presently refer at length), clearly shews that where there has been no separation uterine brothers take to the exclusion of half-brothers. The difficult which has been felt has arisen out to this clause 35, and an erroneous idea that it and certain other propositions laid down as applicable to brothers in cases where there has been a partial partition, or a separation and subsequent reunion, are applicable to cases in which there has been no partition.

There is no possible as to the superiority of the whole brother over the half-brother as regards conferring spiritual benefits. For whereas the whole brother present six oblations to the ancestors of the deceased (three on the father's side, and three on the mother's side), the half brother presents three only, viz., three on the father's side : see Dayabhaga, chap.xi., 5,cls. 3, 12. So far, therefore, as concerns the principle which is the foundation of the whole law of inheritance in Bengal, the brother of the whole blood must inherit in preference to the brother of the half-blood.

The rights of brothers as regards succession are discussed and declared in the Dayabhaga, chap. xi., section 5. Much that is to be found in the section is merely vague discussion. But it is generally easy to say what is authoritative, and what is not ; and the whole section (excluding clause 35, which is reserved for special consideration) maybe summed up thus :-Clauses 1 to 8 shew that, failing the mother, brothers inherit to the exclusion of brothers' sons (owing to the inferiority of the latter in the matter of oblations) ; in clauses 9, 11, and 12, it in laid down broadly that the brother of the whole blood takes before the brother of the whole blood takes before the brother of the half-blood-the latter being expressly placed (s. 12) between the whole brother and the nephew or brother's son ; and the rest of the section, clauses 10 and 13 to 39 (with the possible exception of clause 35), are devoted to and argument as to what happens where there have been partition and reunion, whole or partial. From clause 13 to the end there si not a word (unless in clause 35) which touches a simple case of succession where there never has been a partition at all. The conclusion arrived at as the result of the discussion as to what is to happen when there have been partition and subsequent reunion, &c., is , that if there has been partition, and there are whole brothers and half-brothers, the while brothers take alone if there has been no reunion ; but a half-brother who has become reunited with the deceased will share equally with a whole brother of the deceased who has not become re-united. The reunion, in fact, is considered as advancing the half-brother to a position better than that which he would otherwise have occupied, the reunion being treated as equal to blood-a result which of itself shews that the original position of the half-brother was, according to Hindu law, inferior to that whole brother.

Besides the distinct declarations contained in this sect. 5, there are indications in other parts of the Dayabhaga of the writer's opinion that the brother of the whole blood was superior to him of half-blood. For example, in chap. xi., section 1, which treats of "the window's right of succession," uterine brothers are mentioned in clauses 2 and 3 as near heirs ; and in clause 17 a text of Devala is quoted, which expressly gives priority to the whole brothers over the half-brother. The matter, then, under discussion is the position of the window, and the brothers are only incidentally named. But in the discussion it never seems to have occurred to the commentator that named was anything unnatural or wrong in classing the half-brother separately from and after him of the whole blood ; while in clauses 2 and 3 the use of the word "uterine" indicates the existence of some distinction between those who were uterine and those who were not. The Dayabhaga, chap. xi., section 6, deals with the "nephews" right of succession." Here it is expressly and unequivocally laid down that the succession devolves, first, on the son of the whole brother, and if there be none, on the son of the half-brother, being a giver of oblations to the father of the later proprietor, together with his own grandmother (to the exclusion of the mother of the deceased proprietor), is inferior to the son of the whole brother, who gives oblations to the grandfather in conjunction with the mother of the deceased (clause 2).

We thus have it that-

There remains clause 35, and the difficulties which it created. After much discussion as to separation and reunion, &c., it is said in clause 34 : "Therefore, if whole brothers and half-brothers only (not reunited brothers of either description) be the claimants, the succession devolves exclusively on the whole brother. Accordingly Vrihat Menu says, 'if a son of the same mother survive, the son of her rival shall not take her wealth. This rule shall hold good in regard to the immoveable estate. But on failure of heirs, the half-brother may take the heritage.' "Then comes clause 35, where, with reference to the declaration just quoted, "this rule shall hold good in regard to the immoveable estate," it is remarked : "This rule is relative to divided immoveable. For immediately after treating of such property, Yama says, 'The whole of the undivided immoveable estate appertains to all the brethren ; but dividend immoveable must on no account be taken by the half-brother.' "In clause 36 the commentator proceeds to analyse this text of Yama thus : " 'All the brethren,' whether of the whole of the half-blood. But among whole brothers, if one be reunited after separation, the estate belongs to him. If an unassociated whole brother and reunited half-brother exist, it devolves on both of them. If there be only half-brothers, &c." It is to be observed, and I thick it is shewn by clause 36 that this is so-that in the Dayabhaga itself this text of Yama is introduced only as being connected with the matter under discussion, viz., the succession in cases of separation with or without reunion, &c., and there really is nothing to lead to the supposition that it was referred to save as bearing on that matter, or that in quoting it in clause 35 there was any intention of contradicting or throwing doubt on the law as already distinctly propounded by the writer himself in the earlier portion of section 5.

In the Dayatatwa of Raghu Nandana (written in the beginning of the 16th century) which is based on and closely follows the Dayabhaga, it is laid down expressly (ch. si. cls. 29 and 30) that the brother of the whole blood takes before him of the half. The commentator then proceeds in cls. 31 to 56 to treat of what occurs in cases of partition and reunions, &c. In the course of this discussion he brings in the text of Yama (very much as it is brought in in the Dayabhaga) in connection with Yajnavalkya's observation (set out in clause 32) that "1. A reunited brother shall keep the share o his co-heir who is deceased ; or shall deliver it to his issue. But a uterine brother shall thus retain or deliver the allotment of his uterine brother. 2. A half-brother, however, being again associated, may take the heritage ; not a half-brother (who is not reunited) ; or (a uterine brother) though no to associated, may obtain the property, and not the son of a different mother who is reunited." Discussing this clause (which I give at length merely to shew how entirely it referred to cases of separation and reunion, &c.) in cls. 33 to 35, he , in clause 36, says : "The passage 'but a uterine brother shall thus retain or deliver the allotment of his uterine brother' (sect. 32) is to be explained in the same way ; then he continues in clause 37 : "On this a special rule is propounded by Yama : 'Undivided immoveable property goes to all (the brothers). But never should separated immoveavle estate be taken by half-brothers.' 'All,' that is all a whole and half-brothers. The inference which is deduced from the sense of this text is that, exclusive of immoveable property, everything, whether divided or undivided, appertains to the uterine brother alone." Then clause 38 deals with a question of reunion.

So that here, as in the Dayabhaga itself, the text of Yama is introduced only incidentally in the course of a discussion as to cases where there has been a separation, &c.

It is not easy now to interpret a text like this of Yama standing by itself and apart from the context in which it was originally placed by its author ; what that context was we do not know. Very likely the text never was intended to mean more than that the estate of a father dying joint with his sons goes among all the sons equally, but that, after his death, on the death of a son's uterine brother succeeds in preference to his-brother. It is impossible, however, to sa for certain what the text meant.

It is quoted in Colebrooke's Digest, bk. v. chap. viii. section 1, text 431. It is there treated, not as laying down any general rule as regard succession, but as applying only to cases where there has a separation between the brothers, but part of the joint property has remained undivided. It is interpreted thus by Jagannatha :-"If any immoveable property of divided heirs, common to brothers by different mothers, have remained undivided, being held in coparcenary, the half-brothers shall have equal shares with the rest, but the uterine brother has the sole right to divided proper moveable or immoveable. The text of Vrihat Menu (that quoted in Dayabhaga, chap. xi. section 5, clause 34) likewise intimates the same by alluding to a distinction in respect of immoveable property when the subject proposed was already ascertained by the former part of the text, 428." The text referred to is as follows :-"If a brother by the same mother be living, one by a different mother shall not take the estate ; the law is the same, even though it be immoveable property : but in failure of the whole blood, one of half-blood may indeed posses the estate." It is to be noted further that this text from Vrithat Menu is also treated in Colebrooke's Digest as relating to the subject of succession in cases of separation, reunion, &c.

Although clause 35, of section 5 of chap. xi. of the Dayabhaga may in words appear to confine the rule as to the while blood succeeding in preference to the half, to cases of succession "to divided immoveables" it is quite clear to me that the restriction thus put upon the rule was not intended to be general, but was confined to the branch of the subject under discussion, viz., cases where there had been separation, total or partial, and with or without reunion. Were I of a different opinion, I should still not be prepared simply on account of clause 35, to restrict the rule as suggested : for so to restrict it is directly opposed to the main principle of the Bengal scheme of inheritance, and to the express declarations of the writer of the Dayabhaga himself, and of Rughu Nandana. Yama, moreover, is not a lawgiver of very special authority, though no doubt he is one of the early propounders of the law, whose rules are to be accepted where they are certain and intelligible, and not opposed to those laid down by other sages of equal or greater authority. As a matter of fact, the rule laid down in clause 35. section 5, chap, xi. of the Dayabhaga has never, so far as I can ascertain, been accepted (unless it can be said to be so accepted in the Dayatatwa) as laying down that, in the succession to an undivided estate, the whole brother does not take before the half, until the decision of Division Benches of this Court which have led to the present reference.

Srikrishna Tarkalankar (who lived about 1700, and whose opinion is entitled to very great respect) construed the Dayabhaga as laying down that the whole brother succeeded when there had been no partition, in preferene to the half-brother : see his Recapitulations of the Order of Succession (Stokes' edition of the Dayabhaga, p. 352), when he sumps up the law as laid down in the Dayabhaga, thus :-" If the mother be deceased, a brother is the successor. In the first place, the uterine of whole brother ; if there be none a half-brother. But if the deceased lived in renewed coparcenary with brother is heir in the first instance, but on failure of him the unassociated brother, so in case of all being of the half blood, the associated half-brother inherits in the first place, and on failure of him the unassociated half-brother inherits in the first place, and on failure of him the unassociated half-brother inherits in the first place, and on failure of him the unassociated whole brother, them both are equal heirs."

The same view is propounded by him in his Dayakrama Sangraha, chap. vii. section 7, cls. 1 to 6 : and it seems clear that Srikrishna in laying down the law as he did had no intention of departing in any way from the Dayabhaga.

To turn to more recent writers on the subject. In Halhed's Gentoo Laws, published in 1776, Srikrishna is followed implicitly. I do not refer to Halhed's treatise as deeming it of much authority, but merely as shewing what was, in fact, supposed to be the construction of the Hindu law on the question now before us.

Sir Francis Macnaghten, in his Considerations of the Hindu Law, published in 1824 (pp. 111, &c.), also follows Srikrishna. Referring to the question of separation and reunion, and the confusion existing in the texts on the subject, he remarks that it is certain that it is certain that if all continue joint from the beginning, or if all been separated, the uterine excludes the half-brother from the succession.

So Sir William Macnaghten in his Hindu Law (ed. 1828, vol. i. p. 26) lays it down quite distinctly that "after the mother, brothers inherit ; first the uterine associated brethren of the half-blood ; and fourthly, the unassociated brethren of the half-blood ...."

Elberling adopts the same opinion (par. 175, p. 78).

In the second volume of Macnaghten, at page 66, there is a case which has been referred to as contradicting Macnaghten's own text. But so far as concerns the first of the two questions, which are supposed to be dealt with in that case, it turns upon a wholly different point, viz., that when the first of the three brothers (one of whom was of the half-blood) died, his share went by survivorship to the other brothers, to the exclusion of his widow. This shews that the case must have been one under the Mitaksbara law : and Baboo Sharma Churn Sircar (Vyavastha Darpana, p. 1058, note), says it was an up-country case. The second question put does seem to involve the issue as to the superiority or equality of whole and half-blood among brothers. But the answer given is so loose, and so little in reply to the question asked, that but little value can be attached to it. The case stated is that the first son who died left a widow and a uterine brother. The reply assumes that he died leaving no widow.

The table of inheritance and succession published some five-and-twenty years ago by the late Baboo Prosonno Coomar Tagore, purports to be framed in accordance with the Dayabhaga, Dayatatwa, Dayakrama Sangraha, and other works of the Bengal school. In this table precedence is given to the brother of the whole blood, who stands No. 10 in the list of heirs, while the half-brother stands as No. 11. In the foot-notes to the table it is stated that the brother of the whole blood succeeds first. Then, in continuation of a resume of the law of succession, when there had been separation and reunion, &c., there is this note," The undivided immoveable estate on the earth on the owner will be equally divided among the whole and half-brothers." This note may be said to throw some doubt on the table. But it is clear to me that Prosonno Coomar Togare would never have found the table as he did (and reproduced it, in pamphlet shaps in 1868) if he had no intended the rule given in his note to be construed in a limited sense, as restricted to cases of succession to a portion of the joint estate which on a partial partition had remained undivided.

In the Vayavastha Darpana of Baboo Sharma Chrun Sircar, preference is given to the whole blood. The text of Yama is translated thus :-Whatever immoveable property may remain undivided, that appertains to all : but the divided immoveables must on no account be a taken by the half-brother," and a distinct opinion is expressed that this is the real meaning of the text ; in fact, that it must be read as suggested in Colebrooke's Digest, and that it does not apply to (Vayavastha Darpana, pp. 203, 204, and p. 1057, note.)

No cases have been cited to us in which the question has been judicially decided, except those which are mentioned in order of reference.

On the whole I am of opinion that in Bengal the brother of the whole blood succeeds, in the case of an undivided estate, in preference to a brother of the half-blood.

.